Com. v. Redman, R.

J-A22037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

RICHARD ARDEN REDMAN

Appellant No. 930 MDA 2014

Appeal from the Judgment of Sentence May 13, 2014
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000580-2013

BEFORE: BOWES, J., JENKINS, J. and PLATT, J.*

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 12, 2018

This matter is again before this panel upon remand from the Supreme

Court, after it vacated our decision in light of its recent decision in

Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017). We affirm.

We previously set forth the salient facts:

On February 27, 2013, at approximately 2:30 a.m., the
Pennsylvania State Police dispatched Trooper David Sweeney to
the scene of a one-car accident. Three to four minutes later,
Trooper Sweeney arrived at the scene and observed a white male
(later identified as Appellant) lying in the middle of the crash
scene, and a white pickup truck in a pond.

Trooper Sweeney approached Appellant, smelled alcohol,
and noted Appellant’s eyes were bloodshot and glassy. Appellant
was conscious and yelling. Appellant told Trooper Sweeney that
he was not the driver of the truck. Some ten to fifteen minutes

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* Retired Senior Judge assigned to the Superior Court.
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later, emergency medical personnel removed Appellant and took
him by ambulance to a hospital approximately 30 minutes away.

Trooper Sweeney remained at the scene and continued to
investigate the crash. He ascertained that Appellant had driven
across the double yellow line, hit an embankment, and flipped his
truck. Appellant’s girlfriend arrived at the scene together with a
bartender from the Knight’s Out Bar, where Appellant and his
girlfriend had been earlier in the evening. The bartender was
driving Appellant’s girlfriend home. Both the girlfriend and the
bartender stated that Appellant had consumed alcohol at the
Knight’s Out and driven away in the truck. They noted that
Appellant left the bar, which was four or five miles from the crash
scene, at approximately 2:05 a.m.

Trooper Sweeney left the scene and drove to the hospital.
When he arrived, Trooper Sweeney discovered the medical staff
had intubated Appellant, rendering him unconscious and unable
to consent to a blood draw. Trooper Sweeney directed the medical
staff to draw Appellant’s blood and they complied at 3:40 a.m.
Lab results showed that Appellant had a blood alcohol content of
0.185. On August 13, 2013, the Commonwealth filed a criminal
information charging Appellant with DUI. On August 19, 2013,
Appellant filed a motion to suppress his blood test results. The
trial court conducted a suppression hearing on October 11, 2013.
At the hearing, Trooper Sweeney testified to the above
information. On cross-examination, Trooper Sweeney admitted
that a magisterial district judge (“MDJ”) was on call on the night
in question, and that a procedure was in place for obtaining a
warrant. However, Trooper Sweeney testified that he was familiar
with the procedure for obtaining a blood draw without a warrant.

The trial court denied Appellant’s motion to suppress on
December 4, 2013. Thereafter, on March 11, 2014, the trial court
conducted a non-jury trial and found Appellant guilty of DUI. On
May 13, 2014, the trial court sentenced Appellant to a term on
incarceration of 72 hours to six months.

Commonwealth v. Redman, 153 A.3d 1106 (Pa.Super. 2016) (internal

citations omitted, unpublished memorandum at *1-3), vacated 170 A.3d 1024

(Pa. 2017).

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Appellant timely appealed to this Court. Although Appellant challenged

the constitutionality of 75 Pa.C.S. § 3755, discussed further infra, we affirmed

on the grounds that 75 Pa.C.S. § 1547, the Vehicle Code’s Implied Consent

Law, controlled the matter. Thereafter, the Supreme Court granted

Appellant’s petition for allowance of appeal, vacated our decision for

reconsideration in light of Myers, supra, and directed this Court to consider

Appellant’s remaining issues on remand if necessary. Appellant raises two

issues for our review:

1. [Title] 75 Pa.C.S.A. [§] 3755 is unconstitutional as it violates
[Appellant’s] federal constitutional right against a warrantless
seizure thus the warrantless blood draw of Appellant should have
been suppressed.

2. [The trial court Judge] erred as a matter of law in failing to
suppress Appellant’s blood test results as his factual finding that
the dissipation of alcohol in Appellant’s blood and the two hour
rule were exigent circumstances negating the necessity of a
warrant.

Appellant’s brief at 2.

At the outset, we must discuss the jurisprudential developments

pertinent to this matter, which occurred after we first considered Appellant’s

claimed errors. As noted above, when initially tasked with disposing of

Appellant’s claims, we determined that this matter was controlled by 75

Pa.C.S. § 1547, notwithstanding Appellant’s challenge to the trial court’s ruling

based upon 75 Pa.C.S. § 3577. Section 1547 reads, in relevant part:

(a) General rule.--Any person who drives, operates or is in actual
physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one

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or more chemical tests of breath, blood or urine for the purpose
of determining the alcoholic content of blood or the presence
of a controlled substance if a police officer has reasonable
ground to believe the person to have been driving, operating
or in actual physical control of the movement of a vehicle:

(1) in violation of section 1543(b)(1.1) (relating to driving
while operating privilege is suspended or revoked), 3802
(relating to driving under influence of alcohol or controlled
substance) or 3808(a)(2) (relating to illegally operating a
motor vehicle not equipped with ignition interlock); or

(2) which was involved in an accident in which the operator or
passenger of any vehicle involved or a pedestrian required
treatment at a medical facility or was killed.

(b) Suspension for refusal.--

(1) If any person placed under arrest for a violation of section
3802 is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by
the police officer, the department shall suspend the operating
privilege of the person as follows [delineating specific
punishments].

75 Pa.C.S. § 1547(a) and (b). The statute sets forth that, “if the person

refuses to submit to chemical testing,” that person will be subject to additional

or enhanced criminal penalties. 75 Pa.C.S. § 1547(b)(2)(ii). Significantly,

our Supreme Court has previously held that the Implied Consent Law “grants

an explicit right to a driver who is under arrest for driving under the influence

to refuse to consent to chemical testing.” Commonwealth v. Eisenhart,

611 A.2d 681, 683 (Pa. 1992).

Also of import is 75 Pa.C.S. § 3755, which governs reports by

emergency room personnel. That provision reads, in pertinent part:

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(a) General rule.--If, as a result of a motor vehicle accident, the
person who drove, operated or was in actual physical control
of the movement of any involved motor vehicle requires
medical treatment in an emergency room of a hospital and if
probable cause exists to believe a violation of the section 3802
(relating to driving under influence of alcohol or controlled
substance) was involved, the emergency room physician or his
designee shall promptly take blood samples from those persons
and transmit them within 24 hours for testing to the
Department of Health or a clinical laboratory licensed and
approved by the Department of Health and specifically
designated for this purpose. This section shall be applicable to
all injured occupants who were capable of motor vehicle
operation if the operator or person in actual physical control of
the movement of the motor vehicle cannot be determined.
Test results shall be released upon request of the person
tested, his attorney, his physician or governmental officials or
agencies.

75 Pa.C.S. § 3755(a). We have held that these two provisions,

comprise a statutory scheme which, under particular
circumstances, not only imply the consent of a driver to undergo
chemical or blood tests, but also require hospital personnel to
withdraw blood from a person, and release the test results, at the
request of a police officer who has probable cause to believe the
person was operating a vehicle under the influence.

Commonwealth v. March, 154 A.3d 803, 809 (Pa.Super. 2017) (citing

Commonwealth v. Reidel, 651 A.2d 135, 139-140 (Pa. 1994)).

Since we first determined that § 1547 controlled the disposition of

Appellant’s appeal, both the United States Supreme Court and the

Pennsylvania Supreme Court issued decisions implicating implied consent

laws. In Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), the United

States Supreme Court considered when a warrantless blood draw of an

individual under arrest for DUI was justified as a search incident to arrest.

First, the Court concluded that a warrantless blood draw was not permissible

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as a search incident to arrest, due to the intrusive nature of blood tests.

However, the Court sanctioned warrantless breath tests as searches incident

to arrest. The High Court also briefly considered the validity of such searches

based on statutory implied consent laws. In this vein, it stated:

It is well established that a search is reasonable when the subject
consents, and that sometimes consent to a search need not be
express but may be fairly inferred from context. Our prior
opinions have referred approvingly to the general concept of
implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply. Petitioners do
not question the constitutionality of those laws, and nothing we
say here should be read to cast doubt on them. It is another
matter, however, for a State not only to insist upon an
intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test. There must be a limit
to the consequences to which motorists may be deemed to have
consented by virtue of a decision to drive on public roads.

Id. at 2185 (emphasis added, citations omitted).

The Supreme Court delineated the limit to which a motorist could

impliedly consent, concluding “motorists cannot be deemed to have consented

to submit to a blood test on pain of committing a criminal offense.”1 Id. at

2186. The Court determined that a warrantless blood draw cannot be justified

based on implied consent where an arrestee is criminally prosecuted for

refusing to submit to that blood draw.

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1 Pennsylvania’s Implied Consent Law does not separately criminalize the
refusal of a blood test, but rather, subjects an individual to enhanced
penalties, which, as noted, raises the same constitutional complaints. See 75
Pa.C.S. § 1547.

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In Myers, supra, our High Court addressed § 1547 in light of

Birchfield, supra, in considering whether the statute permitted the

warrantless blood draw of an unconscious individual arrested on suspicion of

DUI. The Court observed that, under § 1547, if a police officer developed

“reasonable grounds” to suspect impairment, then a motorist was deemed to

have consented to chemical testing by driving on a Pennsylvania motorway.

It further noted that the implied consent law granted DUI arrestees a statutory

right to refuse chemical testing on pain of enhanced criminal punishment, so

long as an officer has provided the arrestee with notice of that right and its

consequences.

Four Justices of our Supreme Court determined that, since the

defendant had an absolute statutory right to refuse chemical testing, “the

implied consent statute does not authorize a blood test” when the refusal to

submit to the test was not knowingly and voluntarily made.2 Myers, supra

at 1172. It further observed that the plain meaning of § 1547 did not

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2 We note that the defendant in Commonwealth v. Myers, 164 A.3d 1162
(Pa. 2017), originally challenged his conviction arguing that the warrantless
blood draw was unconstitutional pursuant to Missouri v. McNeely, 133 S.Ct.
1552 (2013). In McNeely, a plurality of the United States Supreme Court
determined that, since a blood draw was a search within the Fourth
Amendment, a warrant is generally required, unless one of the exceptions to
the warrant requirement applied. Specifically, the High Court found that the
dissipation of alcohol from the blood did not constitute a per se exigency when
applying the exigent circumstances exception to the warrant requirement. As
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), was issued during the
pendency of Myer’s appeal, and is more directly on point to his constitutional
challenge, our High Court relied on that case in rendering its decision.

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differentiate between conscious and unconscious arrestees, and therefore, the

right to refuse applied to all individuals arrested for DUI. Finally, three Justices

of the Court determined that the implied consent statute did not itself serve

as an exception to the warrant requirement, but that the voluntariness of an

arrestee’s consent must be evaluated under the totality of the circumstances,

stating, “[s]imply put, statutorily implied consent cannot take the place of

voluntary consent.” Id. at 1176, 1178.

In so concluding, Justice Wecht’s writing for the three Justices

emphasized that Birchfield, supra, did not undermine the High Court’s

findings. Justice Wecht highlighted that Birchfield “provides a general if

uncontroversial endorsement of the concept of implied consent.” Id. at 1178.

The Justice asserted that the Birchfield decision supported the three Justices’

conclusion that a motorist’s consent must be voluntarily given insofar as

Birchfield emphasized the “coercive effect of the threat of criminal

punishment, inasmuch as such coercion may render one’s consent

involuntary.” Id. Of import herein, it highlighted the United States Supreme

Court’s brief recognition of the issues posed by DUI cases involving

unconscious drivers:

It is true that a blood test, unlike a breath test, may be
administered to a person who is unconscious (perhaps as a result
of a crash) or who is unable to do what is needed to take a breath
test due to profound intoxication or injuries. But we have no
reason to believe that such situations are common in drunk-
driving arrests, and when they arise, the police may apply for a
warrant if need be.

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Id. at 1178-1179 (citing Birchfield, supra at 2184-2185)). Justice Wecht

continued, “[l]est anyone doubt what the Supreme Court meant when it stated

that police officers in such circumstances ‘may apply for a warrant if need be,’

the Court emphasized ‘[n]othing prevents the police from seeking a warrant

for a blood test when there is sufficient time to do so in the particular

circumstances or from relying on the exigent circumstances exception to the

warrant requirement when there is not.” Id. at 1179 (citing Birchfield,

supra at 2184)). Thus, in the view of those three Justices, Birchfield did not

suggest that implied consent based on the voluntary operation of a motor

vehicle itself represented an exception to the warrant requirement, but rather,

it “indicated that a warrant would be required in such situations unless a

warrantless search is necessitated by the presence of a true exigency.”3 Id.

In light of the above, the three Justices reasoned “implied consent,

standing alone, does not satisfy the constitutional requirements for the

searches that the statute contemplates.” Id. at 1181. Nevertheless, it did

not find § 1547 unconstitutional, as that issue was simply not before the Court.

Rather, the majority position clarified that § 1547 does not itself justify a

warrantless blood draw unless the subject voluntarily gives consent,

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3 In contrast, an equal number of Justices concluded that implied consent
alone served as a sufficient exception to the warrant requirement. See
Commonwealth v. Myers, 164 A.3d 1162, 1185 (Pa. 2017) (Mundy, J.,
dissenting) (“The plain language of Section 1547(a) [] reveals that anyone
who drives on the roads of this Commonwealth has given implied consent to
a blood test to measure blood alcohol content if the officer has probable cause
to believe the person committed DUI.”), (Saylor, C.J., Baer, J., concurring).

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notwithstanding the practical difficulties involved in securing consent from an

unconscious individual. Id. at 1184 (Todd, J., concurring) (“I agree with the

majority that, under 75 Pa.C.S. § 1547, Myers had an unequivocal statutory

right to refuse blood testing.”).

Turning to the matter sub judice, we initially determined that § 1547

controlled the outcome of this appeal. Upon further review, and in

consideration of Myers, supra, we acknowledge that ruling must be revisited.

Simply, Appellant was not under arrest for DUI at the time Trooper Sweeney

directed medical staff to draw his blood. Hence, § 1547, and the statutory

right to refuse provided to arrestees that we previously relied upon, was not

applicable. 75 Pa.C.S. § 1547(b)(1); Eisenhart, supra. We previously

concluded that, since Appellant was unconscious at the time of his blood draw,

he could not avail himself of his statutory right to refuse, and thus, the blood

draw was justified based on his implied consent alone. As discussed above,

Myers held that the Implied Consent Law does not justify a warrantless blood

draw of an unconscious arrestee since that individual is permitted, by statute,

an opportunity to refuse. On reconsideration, we find that, since Appellant

was not under arrest, the warrantless blood draw at issue herein was subject

to § 3755, and therefore, we reach the merits of Appellant’s claimed errors.

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However, as we find Appellant’s second issue is dispositive, we do not reach

the merits of his constitutional challenge.4

Appellant’s second issue challenges the trial court’s determination that

exigent circumstances excused Trooper Sweeney from seeking a warrant to

draw Appellant’s blood. We are guided by the following principles:

Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing such a ruling by the
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record. .
. . Where the record supports the findings of the suppression
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.

Commonwealth v. Evans, 153 A.3d 323, 327 (Pa.Super. 2016) (brackets

and citation omitted).

Exigent circumstances are a well-established exception to the warrant

requirement. The exception applies when “the exigencies of the situation

make the needs of law enforcement so compelling that a warrantless search

is objectively reasonable under the Fourth Amendment.” Missouri v.

McNeely, 133 S.Ct. 1552, 1558 (2013). In McNeely, the Supreme Court

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4 We observe that, in so far as Birchfield v. North Dakota, 136 S.Ct. 2160
(2016), and Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017), address
the validity of implied consent statutes which include criminal penalties for
refusal to submit to a blood draw, they do not squarely bear on the
constitutionality of 75 Pa.C.S. § 3755. In addition, the right to refuse blood
testing contained within 75 Pa.C.S. § 1547 is a statutory guarantee, and
neither this Court nor our High Court has found it to be a necessary
constitutional protection.

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underscored one such situation, where “law enforcement officers may conduct

a search without a warrant to prevent the imminent destruction of evidence.”

Id. (citing Cupp v. Murphy, 412 U.S. 291 (1973)). When examining such

situations, we review the totality of the circumstances. Id. at 1559.

Appellant contends that McNeely, supra, negated the constitutional

basis for § 3755. He maintains that, following McNeely, the mere dissipation

of alcohol from the bloodstream is no longer a dispositive factor when

considering exigent circumstances. In addition, he claims that the two-hour

rule set forth in 75 Pa.C.S. § 3802,5 which requires the Commonwealth to

prove the alcohol concentration in an individual’s blood within two hours of

the operation of the vehicle, is not a valid consideration when determining

exigency. In this vein, he alleges that there is an exception to the two-hour

rule when the Commonwealth establishes good cause as to why the chemical

test could not be obtained within the two-hour window. He maintains that,

since Appellant was rendered unconscious because of the medical treatment

he received following his car accident, the Commonwealth had sufficient cause

____________________________________________

5 Section 3802, which governs driving under the influence of alcohol or other
controlled substances, requires the Commonwealth to establish the requisite
alcohol concentration within an individual’s blood “within two hours after the
individual has driven, operated or been in actual physical control of the
movement of the vehicle.” 75 Pa.C.S. § 3802(a)(2), (b), (c), (e) and (f).
Notwithstanding these provisions, the statute provides an exception to the
two-hour rule where “the Commonwealth shows good cause explaining why
the chemical test sample could not be obtained within two hours,” and, “where
the Commonwealth establishes that the individual did not imbibe any alcohol
or utilize a controlled substance between the time the individual was arrested
and the time the sample was obtained.” 75 Pa. C.S. § 3802(g).

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to delay the blood test and seek a warrant. He concludes that the

Commonwealth could have obtained a warrant, and that it had sufficient time

to do so. Thus, the warrantless blood draw was not supported by exigent

circumstances. We disagree.

At the suppression hearing, Trooper Sweeney recounted the events

preceding Appellant’s blood draw. He testified that, at approximately 2:32

a.m. on February 27, 2013, he was dispatched to the scene of a vehicular

accident. N.T. Suppression Hearing, 11/11/13, at 2. Upon arriving three to

four minutes later, the trooper observed Appellant lying in the middle of the

crash scene and a white pickup truck in a pond. Id. at 2-3. Appellant, who

was being treated by emergency medical services, denied being the driver of

the vehicle. Id. at 3-4. While interacting with Appellant, Trooper Sweeney

noted that he smelled alcoholic beverages emanating from Appellant, and

observed that his eyes were glassy and bloodshot. Id. at 4. Fifteen minutes

later, medical technicians transported Appellant to a hospital one-half hour

away and the trooper remained at the scene to investigate. Id. at 4-5. While

investigating, Appellant’s girlfriend and a bartender from the Knight’s Out Bar

arrived and indicated that Appellant had been drinking prior to leaving the bar

at approximately 2:05 a.m. Id. at 6, 9-10.

Trooper Sweeney testified that, upon concluding his investigation, he

proceeded directly to the hospital. Id. at 7-8. When he arrived, Appellant

was rendered unconscious due to his medical treatment. Id. at 8. At 3:40

a.m., medical personnel, at Trooper Sweeney’s direction, drew Appellant’s

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blood. Id. The blood test revealed that Appellant had a blood alcohol content

of 0.185. Id. at 9. On cross-examination, Trooper Sweeney confirmed that

a magistrate was on call that evening, and that he could have obtained a

warrant. Id. at 10.

Based on the evidence adduced at the suppression hearing, the trial

court denied Appellant’s motion to suppress. It noted that Trooper Sweeney

had probable cause to suspect Appellant had been driving under the influence,

and thus, the blood draw was justified pursuant to § 3755. Nevertheless, it

observed that Appellant was unable to consent, and since the two-hour

deadline imposed by § 3802 was “rapidly approaching,” the Court found there

was sufficient exigent circumstances to justify the warrantless blood draw.

Trial Cout Opinion, 12/4/13, at unnumbered 3.

At the outset, we observe that, contrary to Appellant’s position,

McNeely, supra, did not outright disallow or eliminate exigency as a valid

basis for a warrantless search, but rather, it merely held that the dissipation

of alcohol from the bloodstream is not itself a per se exigency obviating the

need to secure a warrant. The dissipation of alcohol from the blood stream

remains a viable factor when considering exigency, so long as it is not the only

factor relied upon when determining if exigent circumstances excuse the

warrant requirement in any particular situation.

Under the circumstances of this case, Trooper Sweeney lacked sufficient

time to obtain a warrant when he determined that a blood draw was necessary

to preserve Appellant’s blood sample. As the above testimony indicates,

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Trooper Sweeney had a short window to collect the blood sample from

Appellant after he established that there was probable cause to believe

Appellant had operated his vehicle under the influence of alcohol, and that

Appellant was unable to consent to the search. The record reveals that

Appellant left the Knight’s Out Bar at approximately 2:05 a.m. Since

emergency medical personnel were already on-site and treating Appellant’s

injuries when Trooper Sweeney was dispatched, we can infer that the accident

happened at least a few minutes prior to 2:30 a.m. Hence, the trooper had

until no later than 4:30 a.m. to ensure the blood sample was collected.

After finishing his investigation, Trooper Sweeney traveled one-half hour

to the hospital where Appellant was receiving treatment. It was not until 3:40

a.m., or less than fifty minutes before the two-hour statutory requirement

would expire, and at least one hour and thirty five minutes from Appellant’s

last known drink, that Trooper Sweeney determined a blood draw pursuant

to § 3577 was necessary. Until that point, Trooper Sweeney had no reason

to believe that Appellant would not be conscious for the purposes of requesting

a blood draw, especially since Appellant was conscious when he was

transported from the scene of the accident to the hospital.

Further, even acknowledging that an MDJ was on-call to handle warrant

requests, Trooper Sweeney was the only officer involved in the matter, and at

that hour, it was not reasonably practicable for him to procure the necessary

paperwork and contact the MDJ with time remaining to acquire the blood

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sample.6 See Schmerber v. California, 384 U.S. 757, 770 (1966) (finding

officer reasonably believed that delay necessary to obtain a warrant

threatened destruction of evidence since time had to be taken to bring accused

to hospital and investigate scene of accident). Under the facts of this case,

we find that there was insufficient time to procure a search warrant, especially

in light of the state’s compelling interest in countering the dangers of DUI.

Birchfield, supra at 21778-79 (the States and the Federal Government have

a “paramount interest . . . in preserving the safety of . . . public highways,”

and “a compelling interest in creating effective ‘deterrent[s] to drunken

driving[.]’”). Thus, we find that the suppression court did not err in

determining that the exigent circumstances justified the warrantless blood

draw performed on Appellant. Hence, relief is not warranted.

Judgment of sentence affirmed.

Judge Jenkins did not participate in the consideration or decision of this

case.

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6 We are not persuaded by Appellant’s contention that this matter implicates
the “good cause” exception to the two-hour window required by 75 Pa.C.S. §
3802, or that a potentially meritorious “good cause” exception undermines the
trial court’s finding of exigent circumstances. We note that neither this Court
nor the Supreme Court has found that a person rendered unconscious by
medical treatment satisfies the “good cause” exception for the purposes of §
3755. Moreover, since that question is not squarely before us, we decline to
consider the issue.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/12/2018

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